Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - extension of time - extension of time refused

[1] This decision determines an application made by Ms Chloe Etchells for an extension of time pursuant to section 366(2) of the Fair Work Act 2009 (Cth) (FW Act) to make a general protections dismissal dispute application (Dismissal Application) against her former employer. The Dismissal Application filed by Ms Etchells identified Downer Professional Services Pty Ltd as the Respondent. The employer of Ms Etchells was Downer EDI Services Pty Ltd. Pursuant to section 586 of the FW Act, the Dismissal Application was corrected or amended, without objection, to identify Downer EDI Services Pty Ltd (Downer / the Respondent) as the Respondent. The Dismissal Application is an application made under section 365 of the FW Act.

[2] The application for an extension of time was sought in circumstances where Ms Etchells filed the Dismissal Application on 9 July 2025,[1] which was 35 days after the date that Ms Etchells' dismissal took effect. It was accepted by the parties that Ms Etchells' dismissal took effect on 4 June 2025.[2] Ms Etchells accepts that her Dismissal Application was filed outside of the 21 day period specified in section 366(1)(a) of the FW Act and for her Dismissal Application to proceed that an extension of time is required under section 366(2) of the FW Act.

[3] On 8 September 2025, Ms Etchells' application for an extension of time was the subject of a hearing before me. Ms Etchells appeared for herself. Ms Kate McFarlane who is employed as Legal Counsel with Respondent appeared for the Respondent. Ms Etchells relied upon a witness statement from her partner, Lachlan Langmead,[3] her own witness statement,[4] supporting documents and an outline of submissions.[5] Ms Etchells was cross-examined. The Respondent relied upon its written submissions.[6] The parties made verbal submissions at the hearing. All the evidence and submissions made by the parties has been considered.

[4] For the reasons explained below, I have decided not to grant the extension of time and dismiss the Dismissal Application.

[5] Section 366(1) of the FW Act provides that an application made under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the Fair Work Commission allows under subsection (2)

[6] Section 366(2) provides that the Fair Work Commission (Commission) may allow a further period if the Commission is satisfied that there are exceptional circumstances, taking into account:

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(e) fairness as between the person and other persons in a similar position.

[7] The requirement to take into account the matters set out at section 366(2)(a) - (e) of the FW Act means that each of those matters, insofar as they are relevant, must be treated as a matter of significance in the decision making process.[7]

[8] In an appeal arising from a general protections application involving dismissal that was made after the period specified in section 366(1)(a) of the FW Act (which necessitated consideration of an application for an extension of time to be determined by the matters set out in section 366(2) of the FW Act), a Full Bench of the Commission in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 (Nulty) held:

[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of "exceptional circumstances". In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.

[9] The ultimate conclusion as to the existence of exceptional circumstances will turn on consideration of the matters set in section 366(2)(a) - (e) of the FW Act and the assignment of appropriate weight to each of those matters.[8]

[10] The delay required to be considered under section 366(2)(a) is the period after the prescribed 21 day period for filing an application. However, the circumstances from the date that the dismissal took effect must be taking into account when considering the reason for the delay.[9]

[11] Ms Etchells said that there were several reasons for the delay.[10] The reasons are considered below.

[12] One, Ms Etchells said that the delay was a 'good-faith misunderstanding'.[11] In the Dismissal Application filed with the Commission, Ms Etchells said that she understood that the 21 day lodgement period began on the date of final payment (i.e. 6 June 2025), and not the dismissal date.[12] In her written submissions, Ms Etchells states that she understood that the lodgement period ran from either her final pay date (i.e. 6 June 2025) or six weeks (1.5 months) from that date.[13] At the hearing, Ms Etchells did not identify the basis for her belief that the lodgement period was six weeks.

[13] Two, Ms Etchells relied upon the effect of the process leading up to her dismissal. Ms Etchells said that the process left her feeling unsupported, disrespected and deeply unsafe. Ms Etchells said that at the end of that process she was mentally and emotionally depleted, and that she did not feel safe, well enough or supported to jump straight into legal proceedings.[14]

[14] Three, Ms Etchells further relied upon what she explained was a serious family crisis. Ms Etchells explained that both her mother and sister were hospitalised around the time of her dismissal for reasons associated with their mental health. Ms Etchells explained that another sister lives in that house, and that sister required ongoing support and care. Ms Etchells said that she had to engage with child protection and animal welfare authorities in relation to these family circumstances and provide support to her family. Ms Etchells said that these events were ongoing, traumatic and consumed much of her energy, time and mental bandwidth.[15]

[15] Four, Ms Etchells also relied upon the fact that one of her pets passed away unexpectedly around this time and another pet was hospitalised.[16] Ms Etchells explained that she was grieving for her pet that died unexpectedly, and the pet that was hospitalised resulted in major stress and financial strain. The veterinary bill was before me, and the amount that Ms Etchells and her partner were required to pay was significant.[17]

[16] Five, Ms Etchells said that the combined impact of unemployment and urgent veterinary costs required her to seek work and that diverted her attention away from contesting her dismissal.[18]

[17] Ms Etchells said that the events identified above were overwhelming.[19]

[18] There is nothing exceptional about the reasons for the delay. That is the case irrespective of whether the reasons for the delay are considered individually or collectively.

[19] In respect of the first reason for the delay, as was explained in Nulty, there is nothing exceptional about a dismissed employee making an application 'out of time' because they are unaware of the time limit to make the application. Such circumstances are not out of the ordinary course, or unusual, or special.

[20] In respect of the second, third, fourth and fifth reasons for the delay, even without any medical evidence, I accept that these events either individually and / or collectively would have caused emotional strain, stress, mental health challenges and financial strain on Ms Etchells. I am not satisfied, however, that the emotional strain, stress and mental health challenges experienced by Ms Etchells resulting from the processes leading up to her dismissal are exceptional. Emotional strain, stress and mental health challenges are regularly, routinely or normally encountered by employees going through a 'show cause' process and / or that have been dismissed, especially where the employee perceives that their dismissal is 'unfair'. Unfortunately, life can be difficult at times with close family members suffering from poor health and / or experiencing other difficulties. Difficulties are also experienced by the death of a pet, a pet suffering illness and having an unexpected large financial expense to meet. Financial hardship often accompanies dismissal. Whilst such events or difficulties are distressing and sad, they are not out of the ordinary course, or unusual, or special. Likewise, I am not satisfied that the effect on Ms Etchells as a result of these events or difficulties is out of the ordinary course, or unusual, or special. I note that Ms Etchells was able to apply for other jobs in the period after her dismissal. It is perfectly understandable that Ms Etchells was applying for other jobs after her dismissal. However, I do not accept that these events and / or difficulties rendered Ms Etchells unable to file the Dismissal Application within the 21 day time period in circumstances where for very good reason she was capable of applying for other jobs.

[21] Taking into account the reasons for the delay, I am not satisfied that any and / or all those reasons in combination amount to exceptional circumstances. This weighs against a finding that there are exceptional circumstances to warrant the grant of an extension of time.

Any action taken by the person to dispute the dismissal

[22] Ms Etchells did not take any action to dispute her dismissal, other than filing the Dismissal Application. In the circumstances of this application, I consider this matter to be a neutral factor.

[23] The Respondent concedes that it has not suffered any prejudice arising from the delay.[20] An absence of prejudice does not necessarily weigh in favour of an extension of time being granted.[21] An absence of prejudice is unsurprising where the delay is short.[22] That the Respondent did not sustain any prejudice arising from the Dismissal Application being filed 14 days late does not support a finding that there are exceptional circumstances. In the circumstances of this application, I regard the absence of prejudice as a neutral factor.

[24] When considering the merits of a matter in the context of an application for an extension of time, the member at first instance should not embark upon a detailed consideration of the substantive case.[23]

[25] Ms Etchells' period of employment with the Respondent was less than six months.[24] She was dismissed in her probationary period for matters relating to her conduct and performance.[25] In very summary terms, Ms Etchells says that the concerns raised by the Respondent reflect early-stage misunderstandings, systemic process gaps, limited onboarding, and inconsistent communication rather than misconduct.[26] The Dismissal Application identifies the workplace rights that Ms Etchells says that she exercised.[27]

[26] Given the disputed facts, I am unable to make a full or firm assessment of the merits of the application. In the circumstances of this application, I regard this matter as a neutral factor.

Fairness as between the person and other persons in a like position

[27] The parties made general submissions with respect to this matter.[28] In the circumstances of this application, I regard this matter as a neutral factor.

[28] Having considered and weighed each of the matters in section 366(2) of the FW Act, I am not satisfied that there are exceptional circumstances to warrant an extension of time. Consequently, I am required to decline Ms Etchells' application for an extension of time under section 366 of the FW Act and dismiss Mr Etchells' Dismissal Application. An order to that effect will be issued separately to this decision.

[1] Digital Hearing Book (DHB), page 3.

[7] Woolworths Limited v Ms Yu Duo (Lynda) Lin [2018] FWCFB 1643 at [68].

[8] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [39].

[9] Shaw v Australian and New Zealand Banking Group Corporation Limited [2015] FWCFB 287 at [12], Keith Long v Keolis Downer t/a Yarra Trams [2018] FWCFB 4109 at [40].

[21] Gail Miller v DPV Health Ltd (Hume) [2019] FWCFB 6890 at [21].

[23] Thomas Cosgrove v Clarity Interiors [2020] FWCFB 5464 at [32].

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